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Long-running Shake It Off song-theft case still likely to head to a jury

By Chris Cooke | Published on Wednesday 29 September 2021

The long-running legal battle over the players playing and the haters hating in Taylor Swift’s ‘Shake It Off’ could still end up before a jury, with the judge overseeing the case seemingly not yet persuaded to dismiss the case on a matter of law. Of course he did dismiss it once before, but with the Ninth Circuit appeals court having overturned that decision, Michael Fitzgerald is now much more cautious, despite the Swift side presenting new arguments.

Sean Hall and Nathan Butler reckon that Swift’s 2014 hit rips off a song they wrote in 2001 called ‘Playas Gon Play’. Their song contained the lyric: “The playas gon play/them haters gonna hate”. In her hit, Swift famously sings: “the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate”.

In 2018, Fitzgerald dismissed Hall and Butler’s legal claim, concluding that their 2001 lyrics about ‘playas’ playing and ‘haters’ hating were “too banal” to enjoy copyright protection in isolation, which meant Swift had not infringed any copyrights with her very similar lyrics.

Hall and Butler then took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion on the all important question of whether or not the two key lines of ‘Playas Gon Play’ could be protected by copyright.

That meant the whole thing returned to Fitzgerald’s court. Keen to get the lawsuit dismissed for a second time, Team Swift last year argued that – because the similar lyrics in the two songs are not identical – what they actually share is an idea not an expression. And copyright only protects expressions of ideas, not ideas themselves.

However, the newly cautious Fitzgerald declined to dismiss the case. That didn’t stop Swift’s lawyers having another go at getting dismissal back in July though, this time arguing that disclosures and discovery that has occurred over the last year strengthened their arguments.

According to Law360, in a court hearing this week Fitzgerald said he thought that the Swift side’s arguments were “really strong”, but at the same time, not much has really changed since the Ninth Circuit considered the case, and the appeals judges – of course – were critical of his original decision to dismiss.

Moreover, he mused, he now feels that whether or not Hall and Butler’s lyrics are protected by copyright in the context of this case probably depends on how they are read rather than any legal technicalities. And if that’s true, then a jury needs to get involved.

Needless, to say, lawyers for Hall and Butler agree. They told Law360 that the Swift side are just “trying to avoid the jury at all costs”, but that “the overwhelming similarities between the choruses at issue compel the court’s ear to yield to the jury’s collective ears here”.